Virelli v. Goodson-Todman Enterprises, Ltd.

• Decision Date: 05 January 1989
• Docket Number: GOODSON-TODMAN
• Citation: 142 A.D.2d 479,536 N.Y.S.2d 571
• Parties: , 15 Media L. Rep. 2447 Louis VIRELLI, Individually and as Parent and Natural Guardian of Natalie Virelli, an Infant, et al., Respondents, v.ENTERPRISES, LTD., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 571

536 N.Y.S.2d 571

142 A.D.2d 479, 15 Media L. Rep. 2447

Louis VIRELLI, Individually and as Parent and Natural Guardian of Natalie Virelli, an Infant, et al., Respondents, v. GOODSON-TODMAN ENTERPRISES, LTD., et al., Appellants.

Supreme Court, Appellate Division Third Department.

Jan. 5, 1989.

Ricken, Goldman, Sussman & Blythe (Alan N. Sussman, of counsel), Kingston, for appellants.

De Graff, Foy, Conway, Holt-Harris & Mealey (David F. Kunz, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.

PER CURIAM.

On January 13, 1985, defendant Daily and Sunday Freeman (hereinafter Freeman) published an article entitled "Tormented by a Drug- Crazed Daughter" as one in a series of 27 articles on drug abuse written by defendant Sheila Isenberg. The instant lawsuit was precipitated by this article. Essentially, plaintiffs maintain that they agreed to be interviewed by Isenberg, but that Isenberg breached an agreement not to disclose their identities and to permit plaintiff Louis Virelli to review the article prior to publication. They contend that the article contained identifiable portrayals of plaintiffs and misquoted and misrepresented information as a result of which they were readily identified, humiliated in the community and exposed to public ridicule, threats and contempt. The causes of action alleged are characterized as invasion of privacy, negligence and intentional infliction of emotional distress.

Freeman and defendant Ingersoll Publications Company (hereinafter Ingersoll) moved to dismiss the complaint for lack of personal and subject matter jurisdiction on the premise that Freeman was not a corporate entity and Ingersoll was neither the owner nor proprietor of the newspaper. ¹ On February 6, 1986, plaintiffs cross-moved for leave to join defendant Goodson-Todman Enterprises, Ltd. (hereinafter Goodson) as the proper owner defendant and to serve a supplemental summons and second amended complaint. Freeman and Ingersoll opposed this application to the extent that the one-year Statute of Limitations bar extended to the invasion of privacy and intentional infliction of emotional distress causes of action. ² Supreme Court granted both the motion to dismiss and plaintiffs' cross motion. Goodson and Isenberg (hereinafter defendants) have appealed from this order. Defendants then moved to dismiss the second amended complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action in defamation. The denial of this motion gave rise to the second appeal.

Defendants initially contend that, having granted the motion by Freeman and Ingersoll to dismiss the complaint, Supreme Court no longer enjoyed jurisdiction over the action, as a matter of law, to permit plaintiffs to add Goodson as a party. We disagree. The complaint was still extant because Isenberg remained a defendant who had answered and the relief sought in plaintiffs' cross motion was granted simultaneously in the same decision/order.

Next, defendants maintain that Supreme Court improperly permitted plaintiffs to add Goodson as a party defendant. We hold otherwise, albeit on a slightly different basis. Supreme Court adopted the three-prong standard delineated in Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407 for applying the relation back rule set forth in CPLR 203(b). In Brock, the Second Department enumerated a revised formula for applying CPLR 203(b), holding that a claim against a new party may relate back to the date that a plaintiff's claim was interposed against an originally named defendant, but only if "(1) both claims arose out of the same conduct, transaction or occurrence * * * (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship he can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits * * * and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well" (id., at 69, 443 N.Y.S.2d 407 ).

In this case, the focus is solely on the third prong of the Brock standard. ³ Essentially, defendants maintain that plaintiffs' mistake in naming Freeman and Ingersoll as defendants instead of Goodson is inexcusable since a display notice appeared in every Freeman issue, identifying Goodson as the publisher. Plaintiffs' only explanation for the misidentification is that the attorney who drafted the summons and complaint had never seen the descriptive announcement. We recognize that similar excuses have been rejected outright in Brock and its progeny (see, County of Rockland v. Spring Val. Water Co., 134 A.D.2d 317, 319, 520 N.Y.S.2d 795; Berg v. Mather Mem. Hosp., 131 A.D.2d 618, 619, 516 N.Y.S.2d 702; Liverpool v. Averne Houses, 114 A.D.2d 840, 841-842, 495 N.Y.S.2d 146 affd. 67 N.Y.2d 878, 501 N.Y.S.2d 802, 492 N.E.2d 1218; Brock v. Bua, supra, 83 A.D.2d at 71, 443 N.Y.S.2d 407). Nonetheless, we cannot agree that the nature of plaintiffs' excuse is determinative of the issue presented.

The Brock standard, with which we generally concur, is premised on the counterpart provision set forth in Federal Rules of Civil Procedure rule 15(c) (see, Brock v. Bua, supra, at 68-69, 443 N.Y.S.2d 407). Notably, rule 15(c) simply provides that the new party "knew * * * that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party" (emphasis supplied). Unlike Brock, the Federal rule does not qualify the nature of the mistake. In our view, Brock has superimposed an excuse qualification which shifts the focus away from the primary question of whether the new party had actual notice of the claim within the statutory limitations period. We decline to do so here. In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18), a case involving a similar, untimely failure to name a publisher as a captioned defendant, the United States Supreme Court recently confirmed that the linchpin in cases of this nature is not whether the mistake in service was excusable, but whether "notice within the limitations period" had been achieved (id., at 31, 106 S.Ct. at 2385). Analyzing rule 15(c), the Supreme Court held that relation back requires four predicates, including a showing that the new "party must or should have known that, but for a mistake concerning identity, the action would have been brought against it" (id., at 29, 106 S.Ct. at 2384 ). Noticeably absent is any requirement of an excuse for faulty service. Accordingly, while we apply the third prong of the Brock standard, we do so absent the "excusable" mistake requirement.

Here, plaintiffs have averred that both Isenberg and James Plugh, Goodson's publisher, were personally served with process on January 13, 1986, the last day on which the Statute of Limitations was set to expire (cf., Schiavone v. Fortune, supra, at 29, 106 S.Ct. at 2384). As indicated, plaintiffs' motion to add Goodson was made shortly thereafter on February 6, 1986. On these facts, there is little doubt that Goodson had actual notice of the lawsuit within the limitations period and sustained no prejudice in preparing a defense. It is inconceivable that Goodson was misled into believing that plaintiffs had "opted not to sue ( Brock v. Bua, 83 A.D.2d 61, 71, 443 N.Y.S.2d 407, supra ). Accordingly, we conclude that Supreme Court properly added Goodson as a party defendant.

The second appeal pertains to defendants' motion to dismiss the second amended complaint for failure to state a cause of action in defamation. In opposing the application, plaintiffs emphasized that defendants mischaracterized the nature of the complaint which, in effect, propounded claims for invasion of privacy, negligence and intentional infliction of emotional distress, not defamation. In addressing defendants' challenge, we accord the pleadings a liberal construction in plaintiffs' favor, assuming the truth of the allegations made (see, Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 N.Y.2d 632, 635, 536 N.Y.S.2d 11, 12, 532 N.E.2d 1239 1240 ). ⁴

A cause of action for invasion of privacy requires the use of a name, portrait or picture of a living person for trade or advertising purposes, without consent (Civil Rights Law §§ 50, 51). The courts have consistently held that the "terms should not be construed to apply to publications concerning newsworthy events or matters of public interest" (Stephano v. News Group Pub., 64 N.Y.2d 174, 184, 485 N.Y.S.2d 220, 474 N.E.2d 580). Since the challenged article pertains to the societal scourge of drug abuse, unquestionably a newsworthy item, we find that plaintiffs have failed to state a viable privacy claim (see, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 140-141, 490 N.Y.S.2d 735, 480 N.E.2d 349; Stephano v. News Group Publ., supra ).

We reach a similar conclusion with respect to plaintiffs' third cause of action for intentional infliction of emotional distress. This claim is couched in terms of defendants' failure "to act with due care and in a reasonable fashion", allegations which clearly fall short of the outrageous, extreme behavior required to substantiate a claim of this nature (see, Freihofer v. Hearst Corp., supra, 65 N.Y.2d at 143, 490 N.Y.S.2d 735, 480 N.E.2d 349; Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215; see also, Hustler Mag. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41).

We also find that dismissal should have been granted as to plaintiffs' remaining cause of action, expressly grounded in negligence, alleged in their second amended complaint. The claim in that cause of action is that Isenberg obtained the information from plaintiffs for the article published in Freeman under promises of anonymity and the right to review the article before publication. It is alleged that in violation...